IEBC divisions play out at Supreme Court over lawyers hired by commissioners

The sharp divisions within the Independent Electoral and Boundaries Commission (IEBC) were on display during the pre-trial conference held on Tuesday ahead of the hearing and determination of the petitions filed to challenge the outcome of the 2022 presidential election.

The Martha Koome-led seven-judge bench of the Supreme Court had to deal with the question of IEBC’s legal representation.

The submission by Senior Counsel Prof. Githu Muigai that he represented IEBC was challenged by Senior Counsel James Orengo who informed the court of yet another legal team for the commission led by Senior Counsel Paul Muite who he said was denied access to the plenary.

“My lady the chief justice and members of the court, I have just been informed of a senior Counsel who has been locked out who should be in this proceedings, senior counsels Paul Muite and Ali Mansur for the IEBC. I think it is a matter which is live before the court to make a determination whether they could be heard but they have filed papers and they ought to be at least allowed in,” submitted Orengo.

In response, Chief Justice Martha Koome responded: “They have not been disallowed…the commissioners to IEBC have not been disallowed. They were as respondents they are entitled to be present with their lawyers.”

That clarification from the chief justice however did not suffice due to the existence of two factions of the electoral body which senior counsel James Orengo was quick to point out.

Koome however noted that both factions are allowed to participate in the proceedings with their lawyers.

Senior counsels Paul Muite and Prof. Githu Muigai did not leave it at that. They held their peace but faced off after the brief interlude of calm.

“My colleague Prof Githu Muigai and Karori Kamau have filed a set of pleadings on behalf of the commission. My colleague Issa Mansur has filed several pleadings on behalf of the commission. As far as I am concerned with Issa as I had indicated, we rely on a resolution by four of the seven commissioners we have stated in our pleadings that we are legitimately representing the commission our colleagues have filed the pleadings on the basis of instructions I believe by the CEO who we say implements instructions from the commission. The commission is a corporate entity in the absence of consensus decisions are by a majority,” said Muite.

 In response Githu Muigai stated: “...It is not the work of the commissioners of IEBC whether in majority or minority to procure any services that flies totally in the face of the procurement law in this country. As we sit here now, the four who purport to have procured have committed a criminal offence.  From my understanding of your earlier ruling was that IEBC was properly represented by its advocates on this table however, the four commissioners who are listed as respondents but who are supporting the petition will continue to enjoy the distinguished services of my senior learned friend Paul Muite.”

Senior counsel Fred Ngatia appearing for President-elect William Ruto argued that it would compromise the fairness of the hearing

“There is something that may the missed as my two learned friends are fighting and it is so important it could compromise the fairness of the hearing which you have endeavoured with so much effort to craft a way forward. 8 petitions were filed against my client within the 7 days… I burnt midnight oil and filed my response within time. Then comes the group of four commissioners on 26th August a response to the petition ... it is not a response…it is a new petition there are new claims, new grievances new grounds for nullification of my client’s electoral victory.

Will that response still be on record or are they limited to the affidavits that they had filed and which have been allowed because the response is also part of the record or a new petition filed outside time I do not know whether I need to respond to it and whether it would still be admitted by the court notwithstanding the strictures in article 140,” submitted Ngatia.

In a rejoinder, lawyer Tom Ojienda suggested: “…why can’t all of them appear for the IEBC. All the senior counsel can appear for IEBC so that the court is richer with submissions from all parties. So that we hear the Chebukati faction and the Cherera faction and I think the court them can make a good decision.”

After retreating for about 3 hours the 7-judge bench would emerge with a ruling striking out the notice of appointment of advocates that had been lodged by Issa Mansur & Company Advocates dated 26th August 2022.

The supreme court stated that the issue of who represents IEBC was an internal one and it could not deal with it. It however allowed the four commissioners to retain senior counsel Paul Muite and Advocate Mansur at a personal level if they so wished.

“We have considered these arguments and as a result, we allow the application dated 29th August 2022. The notice of appointment filed by Issa Mansur and Company Advocates is struck out the four commissioners are at liberty to deploy and utilize the services of Senior counsel Paul Muite and Issa Mansur advocate if they deem it necessary in these proceedings,” ordered the court in a ruling read by deputy chief justice Philomena Mwilu.